Richard A. Tamborski Employment Agreement
Exhibit
99.1
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▇. ▇▇▇▇▇▇▇▇▇ Employment Agreement
This Employment Agreement (“Agreement”)
is effective as of the 14th day of
January, 2008 (the “Effective Date”) between MISCOR Group, Ltd., an Indiana
corporation (“MISCOR” or “Company”), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (the
“Executive”).
In consideration of the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
Article
I
Employment
The Company hereby employs Executive,
and Executive accepts employment with the Company, upon the terms and conditions
herein set forth.
1.1 Employment. The
Company hereby employs Executive, and Executive agrees to serve, as the
Company’s Executive Vice President and Chief Operating Officer during the term
of this Agreement. Executive agrees to perform such duties as may be
assigned to Executive from time to time by the Company’s Chief Executive
Officer. Executive agrees to devote substantially his full business time and
attention and best efforts to the affairs of the Company during the term of this
Agreement.
1.2 Term. The term of
employment of Executive hereunder will be for the period commencing on the
effective date of this Agreement and ending on the earliest of:
(a) January
14, 2011 (the “Initial Term”);
(b) The
date of termination of Executive’s employment in accordance with Article IV of
this Agreement;
(c) The
date of Executive’s voluntary retirement in accordance with the Company’s plans
and policies; or
(d) The
date of Executive’s death or Disability (as defined below).
Unless this Agreement is terminated
pursuant to Paragraphs (b), (c) or (d) above, the term of this Agreement shall
be extended automatically for successive one year periods, unless and until at
least three (3) months written notice is given by either party requesting
termination or renegotiation of this Agreement prior to the end of the Initial
Term or any anniversary date thereafter.
Article
II
Compensation
2.1 Base
Salary. Effective as of the Effective Date and during the
employment of Executive, the Company shall pay to the Executive a base salary at
the rate of Two Hundred Thousand Dollars ($200,000) per year, and thereafter at
a rate determined by the Company’s
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Board of
Directors (the “Base Salary”). The Base Salary shall be payable in substantially
equal bi-weekly installments, or otherwise consistent with the Company’s
then-current payroll practices.
2.2 Bonus. Assuming
Employee continues to be employed by Company, Company will establish an
incentive program that will allow for an annual incentive of up to 30% of Base
Salary (the “Bonus”), with payments to be made quarterly within sixty (60) days
of the end of each quarter, based on performance goals or criteria to be
determined jointly by Company and Employee.
2.3 Automobile
Allowance. Company will provide Employee with an automobile
allowance of seven hundred and fifty dollars ($750) per month through the term
of this Employment Agreement. Company will also provide Employee with
a company fuel card.
2.4 Withholding. The
Company will deduct and withhold all necessary social security and withholding
taxes and any other similar sums required by law (“Withholding Taxes”) from
Executive’s Base Salary, Bonus, and Automobile Allowance, to the extent required
by law.
2.5 Equity. On
February 7, 2008, the Compensation Committee of MISCOR Group, Ltd. granted to
Employee, conditioned upon execution of this agreement and the approval by the
Company’s Shareholders of an amendment to the Option Plan allowing issuance of
additional shares under that Plan:
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(a)
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an
option to purchase Eight Thousand (8,000) shares of MISCOR stock, priced
at the market price for MISCOR stock on February 7, 2008, subject to the
terms of the 2005 MISCOR Stock Option Plan, which option shall be granted
as a qualified Incentive Stock Option (“ISO”) within the meaning of §422
of the Internal Revenue Code of 1986, as amended;
and
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(b)
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a
30-day option to purchase Four Thousand (4,000) shares of restricted stock
at the price of $.001 per share subject to the terms of the 2005 MISCOR
Restricted Stock Purchase Plan.
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2.6 Reimbursement of
Expenses. The Executive shall be entitled to receive prompt
reimbursement of all reasonable expenses incurred by the Executive in performing
services hereunder, including all expenses of travel, car phone, entertainment
and living expenses while away from home on business at the request of, or in
the service of, the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
2.7 Benefits. The
Executive shall be entitled to participate in and be covered by all health
insurance, retirement, disability insurance, physical exam and other employee
plans and benefits as established or amended by the Company from time to time
(collectively referred to herein as the “Company Benefit Plans”) on the same
terms as are generally applicable to other senior executives of the Company,
subject to meeting applicable eligibility requirements.
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2.8 Vacations and
Holidays. During Executive’s employment with the Company and
in accordance with the Company’s vacation policies applicable to senior
executives, Executive shall be entitled to an annual vacation leave at full pay,
such vacation to be two weeks in each year of the term hereof or such greater
vacation benefits as may be provided for by the applicable Company
policies. Executive shall be entitled to such holidays as are
established by the Company for all employees.
2.9 Short-term Disability. During
Executive’s employment with the Company, Executive shall be provided with
short-term disability coverage for a period of up to 6 months at 60% of base
salary.
Article
III
Non-Competition,
Confidentiality and Nondisclosure
3.1 Confidentiality. Executive
acknowledges that he will be employed in a position of trust and confidence with
respect to the Company. In particular, the Company and Executive
recognize that to provide a high quality of products and services to the
Company’s customers, which benefits both the Company and Executive economically,
the Company will need to reveal to Executive valuable Confidential Information
(defined below) known and used by the Company and its subsidiaries, affiliates
and customers. Executive will not during Executive’s employment by
the Company or thereafter at any time disclose, directly or indirectly, to any
person or entity or use for Executive’s own benefit any trade secrets or
confidential information relating to the Company’s, or any of the Company’s
subsidiaries’ or affiliates’, business operations, marketing data, business
plans, strategies, employees, negotiations and contracts with other companies,
or any other subject matter pertaining to the business of the Company or any of
its clients, customers, consultants, licensees, subsidiaries or affiliates,
known, learned, or acquired by Executive during the period of Executive’s
employment by the Company (collectively “Confidential Information”), except as
may be necessary in the ordinary course of performing Executive’s particular
duties as an employee of the Company.
3.2 Return of Confidential
Material. Executive shall promptly deliver to the Company on
termination of Executive’s employment with the Company, whether or not for cause
and whatever the reason, or at any time the Company may so request, all
memoranda, notes, records, reports, manuals, drawings, blueprints, and any other
documents of a confidential nature belonging to the Company or its subsidiaries
or affiliates, including all copies of such materials which Executive may then
possess or have under Executive’s control. Upon termination of
Executive’s employment by the Company, Executive shall not take any document,
data, or other material of any nature containing or pertaining to the
proprietary information of the Company or its subsidiaries or
affiliates.
3.3 Restrictive
Covenants. To reduce the cost to the Company of monitoring and
enforcing the compliance of Executive with the confidentiality obligations
contained in Section 3.1 of this Agreement, Executive agrees that he will not,
so long as he is employed by the Company and, in the case of Section 3.3(b), (c)
and (d), for the longer of (i) a period of one (1) year from and after the date
of termination of his employment, or (ii) the period during
which
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Executive
receives any compensation from the Company under the terms of Section 4.4(b)
(the “Restricted Period”):
(a) directly
or indirectly own an interest in, manage, operate, join, control, lend money or
render financial assistance to, as an officer, employee, partner, stockholder,
consultant or otherwise, any individual, partnership, firm, corporation or other
business organization or entity that, at such time directly competes with, or
intends to compete with, the Company or any of its subsidiaries or affiliates in
any principal line of business engaged in by the Company or any of its
subsidiaries or affiliates at the time of such termination (a “Competing
Company”) within the Prohibited Territory (as defined below); Notwithstanding
the foregoing, Executive shall be entitled to own securities of any entity if
such securities are registered under Section 12(b) or (g) of the Securities
Exchange Act of 1934, as amended, and, upon approval of the Company’s Board of
Directors, Executive shall be entitled to purchase securities of a Competing
Company entity if such securities are offered to investors irrespective of any
employment or other participation in the entity by the investor;
(b) directly
or indirectly, either for Executive or for any other person or entity, solicit
any person or entity to terminate such person’s or entity’s contractual and/or
business relationship with the Company or any of its subsidiaries or affiliates,
nor shall Executive interfere with or disrupt or attempt to interfere with or
disrupt any such relationship;
(c) engage
for the benefit of himself or any other person or entity, in any activity of
employment in the performance of which it could be reasonably anticipated that
he would be required or expected to use or disclose Confidential Information
obtained while an employee of the Company; or
(d) directly
or indirectly solicit any of the Company’s employees, agents, or independent
contractors to leave the employ of the Company for a Competing
Company.
For
purposes of this Agreement, the “Prohibited Territory” means anywhere within a
one hundred (100) mile radius of each of Company’s locations, unless that
geographic restriction is deemed to be of unreasonably broad scope, and
therefore unenforceable, by a court of competent jurisdiction, in which case the
next sentence shall define the Prohibited Territory. The Prohibited
Territory means anywhere within a seventy-five (75) mile radius of each of
Company’s locations, unless that geographic restriction is deemed to be of unreasonably broad scope, and therefore unenforceable, by a court
of competent jurisdiction, in which case the next sentence shall define the
Prohibited Territory. The Prohibited Territory means anywhere within
a fifty (50) mile radius of each of Company’s locations.
In the
event of a violation by Executive of the provisions of Section 3.3(b), (c) or
(d) following termination of employment, Executive hereby forfeits any amount
due and owing Executive under the terms of Section 4.4(b), if any, and such
forfeiture shall be in
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addition
to all other rights and remedies that the Company may have under this Agreement,
at law or in equity, as a result of any such violation.
3.4 Intellectual
Property.
(a) Disclosure. During
the term of this Agreement and during the one year period after termination of
Executive’s employment hereunder, Executive shall promptly and fully disclose to
the Company all computer programs, documentation, software, and other
copyrightable works (“copyrightable works”), and all discoveries, improvements,
and inventions (“inventions”) conceived, reduced to practice, or made by
Executive, whether solely or jointly with others, which: (i) relate
in any manner to the business or activities of Company and any of its
subsidiaries or affiliates; or (ii) are suggested or result from any work
performed or duties assigned to Executive on behalf of Company or any of its
subsidiaries or affiliates; or (iii) are made or conceived of through the use of
Company’s, or any of its subsidiaries’ or affiliates’, facilities or resources
or using any Confidential Information; or (iv) otherwise arise during the course
of Executive’s employment with Company (collectively, “Intellectual Property”);
except that the term “Intellectual Property” shall not include any copyrightable
works or inventions which Executive proves to have been conceived and made by
him either before or after termination of his employment with Company and not
based upon any Confidential Information. This disclosure requirement
will apply whether or not such Intellectual Property is patentable or
copyrightable and whether or not made or conceived solely by Executive or in
conjunction with another person. This disclosure requirement will
also apply regardless of whether any Intellectual Property is made during or
after Executive’s working hours or made at or away from his usual place of
employment.
(b) Ownership. All
Intellectual Property shall be the exclusive property of the Company, and
Executive hereby irrevocably assigns to the Company any and all of his rights,
title and interest in and to any and all such Intellectual
Property. Without limiting the generality of the foregoing, all
Intellectual Property which constitutes copyrightable works shall be considered
works made for hire for the benefit of the Company. If any such work
shall be deemed not to be a work made for hire, or if Executive should otherwise
by operation of law be deemed to retain any rights to any such work, Executive
hereby irrevocably assigns all of his rights, title and interest in and to such
work to the Company.
(c) Assistance. Executive
agrees to fully cooperate with and assist the Company in the preparation and
prosecution of patent applications and copyright registration applications
relating to any Intellectual Property, without further
compensation. Executive further agrees to execute any further
documents which may be lawful, necessary or proper to memorialize or secure the
exclusive title for such Intellectual Property in the Company, without further
compensation to Executive. If Executive fails to sign and deliver to
the Company (or its agents or attorneys) any document requested by the Company
(or its agents or attorneys) to evidence the Company’s sole ownership of any
Intellectual Property within fifteen (15) days after the Company’s delivery of
any such document to Executive with a request that Executive
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sign or
deliver same, then Executive agrees that the President of the Company or a
person designated by the Board of Directors of the Company (the “Company’s
Representative”) may sign any and all of such documents in Executive’s name and
on his behalf. Accordingly, Executive hereby makes, constitutes and
irrevocably appoints Company’s Representative as Executive’s agent and
attorney-in-fact, said power of attorney being coupled with an interest, and
authorizes Company’s Representative in Executive’s name, place and stead to
execute on Executive’s behalf each and all of such documents.
3.5 Reasonableness of
Covenants. The parties acknowledge and agree that the temporal
and other limitations contained in this Article III are reasonable and necessary
for the proper protection of the Company. Executive further acknowledges that,
in the event of the termination of his employment with the Company, his skills
and experience are such that he can obtain employment without soliciting the
Company’s customers or engaging in activity forbidden by this Agreement and that
the enforcement of a remedy by way of injunction will not prevent him from
earning a livelihood. In the event, however, a court determines that
any of the terms, provisions, or covenants contained in this Article III are
unreasonable, a court may limit the application of any such term, provision or
covenant, or modify any such term, provision or covenant and proceed to enforce
this Article III as so limited or modified.
3.6 Right to Injunctive and Equitable
Relief. Executive acknowledges that the Company’s remedy at
law for any breach of Executive’s obligations under this Article III would be
inadequate and specifically agrees that the Company may be entitled to
injunctive relief against him, in addition to any other remedies available at
law or in equity, including compensatory damages incurred by the Company as a
result of such violation and including costs, expenses and reasonable attorneys’
fees and the right to set off in enforcing any of its rights under this Article
III. Should any party hereto resort to legal proceedings in connection with the
enforcement of the terms of this Article III, the party prevailing in such legal
proceedings pursuant to an adjudication by the court shall be entitled, in
addition to such other relief as may be granted, to recover its/his or their
reasonable costs and expenses (including reasonable fees of attorneys,
accountants and others) incurred in connection with the defense or prosecution,
as the case may be, of such legal proceedings from the non-prevailing
party. Furthermore, the obligations of Executive and the rights and
remedies of the Company under this Article III are cumulative and in addition
to, and not in lieu of, any obligations, rights, or remedies created by
applicable law relating to misappropriation or theft of trade secrets or
confidential information.
3.7 No Violation of Other
Agreements. Executive represents that his performance of all
the terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to (i) not compete or interfere with the business of a
former employer (which term for purposes of this Section 3.7 shall also include
persons, firms, corporations and other entities for which Executive has acted as
an independent contractor or consultant), (ii) not solicit employees, customers
or vendors of any former employer or (iii) keep in confidence proprietary
information acquired by Executive in confidence or in trust prior to Executive’s
employment with the Company. Executive represents and warrants to and
covenants with the Company that Executive will not bring to the Company any
materials or documents of a former employer containing confidential or
proprietary information that is not generally available to the
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public,
unless Executive shall have obtained express written authorization from any such
former employer for their possession and use. Executive hereby agrees
to indemnify, defend and hold harmless the Company (including its officers,
directors, employees and agents) from and against any loss, claim, liability,
damages, cost or expense, including reasonable attorneys’ fees, incurred or
suffered by the Company which arise out of or relate to any inaccuracy or breach
of the representations and warranties contained in this Section.
Article
IV
Termination
4.1 Definitions. For
purposes of this Article IV, the following definitions shall apply to the terms
set forth below:
(a) Cause. “Cause”
shall be defined as follows:
(i) Executive’s
conviction of any felony (whether or not involving the Company) which
constitutes a crime of moral turpitude or which is punishable by imprisonment in
a state or federal correction facility;
(ii) Actions
by Executive during the term of this Agreement involving willful malfeasance or
gross negligence;
(iii) Executive’s
commission of an act of fraud or dishonesty, whether prior or subsequent to the
date hereof, upon the Company,
(iv) Executive’s
material breach of the terms and conditions of this Agreement; provided that
termination of Executive’s employment pursuant to this subparagraph (iv) shall
not constitute valid termination for “Cause” unless Executive shall have first
received written notice from the Company stating the nature of the material
breach, failure or refusal and affording Executive at least ten (10) days to
correct the act or omission complained of to the satisfaction of the Company’s
Board of Directors; or
(v) Executive’s
willful violation of any reasonable rule or regulation applicable to all senior
executives if such violation is not cured to the satisfaction of the Company
promptly following notice to Executive.
(b) Disability. “Disability”
shall mean a physical or mental incapacity as a result of which the Executive
becomes unable to continue the proper performance of his duties hereunder in
substantially a full time capacity (reasonable absences because of medical
reasons for up to six (6) consecutive months excepted, provided, however, that
any new period of incapacity or absences shall be deemed to be part of a prior
period of incapacity or absences if the prior period terminated within ninety
(90) days of the beginning of the new period of incapacity or absence and the
new incapacity or absence is determined by the Company, in good faith, to be
related to the prior incapacity or absence.) A determination of Disability shall
be subject to the certification of a qualified
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medical
doctor agreed to by the Company and the Executive or, in the event of the
Executive’s incapacity to designate a doctor, the Executive’s legal
representative. In the absence of agreement between the Company and
the Executive, each party shall nominate a qualified medical doctor and the two
doctors so nominated shall select a third doctor, who shall make the
determination as to Disability.
(c) Good Reason. “Good
Reason” shall mean: (i) the failure of the Company to pay any amount
due to Executive hereunder, which failure persists for fifteen (15) days after
written notice of such failure has been received by the Company; (ii) any
material reduction in Executive’s title or a material reduction in Executive’s
duties or responsibilities (unless such reduction is for Cause); (iii) any
material adverse change in Executive’s Base Salary (unless such reduction is for
Cause) and any material adverse change in Executive’s benefits (other than
changes that affect other management employees of the Company to the same or
comparable extent); (iv) any relocation of the premises at which Executive works
to a location more than 25 miles from such location, without Executive’s
consent; or (v) the Company’s material breach of this Agreement, which breach
has not been cured by the Company within fifteen (15) days after receipt of
written notice specifying, in reasonable detail, the nature of such breach or
failure from Executive.
4.2 Termination by
Company. The Company may terminate the Executive’s employment
hereunder effective immediately for Cause. Subject to the other
provisions contained in this Agreement, the Company may terminate this Agreement
for any reason other than Cause upon 30 days’ written notice to
Executive.
4.3 Termination by
Executive. Executive may terminate this Agreement effective
immediately for Good Reason. Subject to the other provisions
contained in this Agreement, Executive may terminate this Agreement without Good
Reason upon 30 days’ written notice to the Company.
4.4 Benefits Received Upon
Termination.
(a) If
the Executive’s employment is terminated as a result of Executive’s death or
Disability, by the Company for Cause, or by Executive without Good Reason, then
the Company shall pay the Executive his Base Salary through the effective date
of such termination plus credit for any vacation earned but not taken and the
Company shall thereafter have no further obligations to Executive under this
Agreement; provided, however, that the Company will continue to honor any
obligations that may have vested or accrued under the existing Company Benefit
Plans or any other Agreements or arrangements applicable to the
Executive.
(b) If
the Executive’s employment is terminated by the Company without Cause,
or if this Agreement is terminated by Executive for Good Reason, then the
Company shall:
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(i) pay
to the Executive within two business days following the date of termination his
Base Salary through the end of the month during which such termination occurs
plus credit for any vacation earned but not taken;
(ii) pay
to the Executive as severance pay: (1) an amount equal to the Executive’s annual
Base Salary in effect as of the date of termination, which amount shall be paid
in installments in accordance with the Company’s usual payroll periods for two
(2) years, plus (2) an amount equal to the most recent annual profit sharing
and/or incentive bonus received by the Executive from the Company, prorated for
the portion of the current year for which the Executive was employed, or, if
more, the amount which would be due under the profit sharing and/or incentive
bonus plans applicable to Executive for the then current year calculated as of
the effective date of termination; such amount to be reduced by any payment
previously received for and during the current year as part of the profit
sharing and/or incentive bonus plans and such payment to be made in
substantially equal installments in accordance with the Company’s usual payroll
periods over such time period as Executive receives Base Salary severance
payments hereunder;
(iii) maintain,
at the Company’s expense, in full force and effect, for the Executive’s
continued benefit for one year, all Company medical insurance and reimbursement
plans and other programs or arrangements in which the Executive was entitled to
participate immediately prior to the date of termination, provided that the
Executive’s continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the
Executive’s participation in any such plan or program is barred, the Company
shall arrange to provide the Executive with medical benefits substantially
similar to those which the Executive was entitled to receive under such plans or
programs; and
(iv) pay,
for the benefit of Executive, all costs, up to a maximum of $10,000, related to
Executive’s participation in a senior executive outplacement program at an
outplacement firm.
(c) In
the event of Executive’s Disability, Executive acknowledges that his employment
will be automatically terminated effective immediately upon the determination of
Disability; provided that, during the period of the disability prior to such
termination of employment, Executive shall continue to receive all compensation
and benefits as if he were actively employed less any sums received directly by
the Executive, if any, under any policy or policies of disability income
insurance purchased by the Company. In the event of such termination,
Executive’s rights to receive any salary or payments under this Agreement shall
terminate but Executive shall have the right to continue to receive any and all
payments made by an insurance company under any and all policies of disability
insurance purchased by the Company. Executive’s rights under any Company Benefit
Plans will be those rights accorded to any terminated
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employee
under the plan provisions and applicable law. Executive will remain entitled to
receive any benefits under state disability or worker’s compensation
laws.
(d) The
Company will deduct and withhold all necessary Withholding Taxes from
Executive’s benefits provided hereunder.
4.5 Effect of Termination. Upon
any termination of this Agreement, for any reason, Executive shall be deemed to
have immediately resigned as a director of the Company and all subsidiaries, if
applicable, without the giving of any notice or the taking of any other
action.
Article
V
Assumption
of Obligations by Successor to Company
5.1 Assumption of
Obligations. The Company will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly, absolutely and unconditionally assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken
place. Any failure of the Company to obtain such agreement prior to
the effectiveness of any such succession or assignment shall be a material
breach of this Agreement. As used in this Agreement, “Company” shall
mean the Company as herein before defined and any successor or assign to its
business and/or assets as aforesaid which executes and delivers the agreement
provided for in this Article V or which otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law. If at any time
during the term of this Agreement the Executive is employed by any corporation a
majority of the voting securities of which is then owned by the Company,
“Company” as used in this Agreement shall in addition include such
employer.
5.2 Beneficial
Interests. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts are still
payable to him or her hereunder, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive’s devisee, legatee, or other designee or, if there be no such
designee, to the Executive’s estate.
Article
VI
General
Provisions
6.1 Notice. For
purposes of this Agreement, notices and all other communications provided for in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, as follows:
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to the Company:
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Attn: President
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If
to the Executive:
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or such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
6.2 No Waivers. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by the
Executive and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
6.3 Governing Law;
Forum. This Agreement and the obligations of the parties
hereto shall be construed, interpreted and enforced in accordance with the laws
of the State of Indiana, without regard to conflicts of law
principles. The parties consent to exclusive personal jurisdiction of
Federal and State courts in the Northern District of Indiana with respect to any
disputes or controversies arising out of or relating to this
Agreement.
6.4 Severability or Partial
Invalidity. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
6.5 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
6.6 Legal Fees and
Expenses. Should any party institute any action or proceeding
to enforce this Agreement or any provision hereof, or for damages by reason of
any alleged breach of this Agreement or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party in any such action or
proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys’ fees, incurred by the prevailing party
in connection with such action or proceeding.
6.7 Entire
Agreement. This Agreement constitutes the entire agreement of
the parties and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings, and negotiations between the parties with
respect to the subject matter hereof. This Agreement is intended by
the parties as the final expression of their agreement with respect to such
terms as are included in this Agreement and may not be contradicted by evidence
of any
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prior or
contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence may be introduced in any judicial proceeding involving
this Agreement.
6.8 Assignment. This
Agreement and the rights, duties, and obligations hereunder may not be assigned
or delegated by any party without the prior written consent of the other party
and any such attempted assignment and delegation shall be void and be of no
effect. Notwithstanding the foregoing provisions of this Section 6.8,
the Company may assign or delegate its rights, duties, and obligations hereunder
to any person or entity which succeeds to all or substantially all of the
business of the Company through merger, consolidation, reorganization, or other
business combination or by acquisition of all or substantially all of the assets
of the Company; provided that such person assumes the Company’s obligations
under this Agreement in accordance with Section 5.1.
6.9 Indemnification. To
the extent permitted by law, applicable statutes and the Articles of
Organization, Operating Agreement or resolutions of the Company in effect from
time to time, the Company shall indemnify Executive against liability or loss
arising out of Executive’s actual or asserted misfeasance or nonfeasance in the
performance of Executive’s duties or out of any actual or asserted wrongful act
against, or by, the Company including but not limited to judgments, fines,
settlements and expenses incurred in the defense of actions, proceedings and
appeals therefrom. The Company shall endeavor to obtain Directors and Officers
Liability Insurance to indemnify and insure the Company and Executive from and
against the aforesaid liabilities. The provisions of this paragraph shall apply
to the estate, executor, administrator, heirs, legatees or devisees of
Executive.
IN
WITNESS WHEREOF, the parties have duly executed this Employment Agreement on the
date or dates indicated below, effective as of the day and year first above
written.
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“Company”
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“Employee”
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By:
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/s/
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/s/
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Date:
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8/20/2008
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Date:
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8/20/2008
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